As WiseLawNY predicted after oral argument on Oct. 18, the New York Court of Appeals today ruled that Jesse Friedman, who served 13 years in prison for molesting pre-adolescent boys attending an after-school computer class in his home should be given another chance to get prosecution records under New York’s Freedom of Information Law (FOIL) in his quest to establish his innocence.

In a 5-2 decision written by Judge Jenny Rivera, the Court ruled that the Second Department had applied the wrong standard in ruling that prosecution records were not required to be disclosed under New York’s FOIL.

Rivera found that the standard applied by the Second Department was out of line with the test used in the other three departments of the Appellate Division as well as the test employed in the federal Freedom of Information Act (FOIA).

The rejected Second Department test had barred the disclosure of any information from prosecution files in cases that do not go to trial. The other three departments require the release of information from prosecution files under FOIL unless there is an express or implied promise that the information will remain confidential.

The court remanded that the matter to the trial court to determine which documents could be withheld on the basis of an express or applied promise of confidentiality.

The trial judge, Justice F. Dana Winslow, had ruled in 2013 that “every scrap of paper” in the prosecution’s file should be turned over to Friedman because the prosecution had failed to turnover to the defense massive amounts of materials that might have aided Friedman in making his decision in 1988 whether to plea guilty.

Winslow, however, retired from the bench at the end of 2015.

In dissent, Justice Gerald Whalen, who sat by designation from the Third Department, proposed a much more searching inquiry in cases, “involving sensitive matters such as alleged sexual offenses committed against children.” Judge Michael Garcia joined the dissent.

Friedman’s lawsuit to establish his innocence is pending before a second Nassau County Supreme justice, Terrence P. Murphy, but that case has been on hold as the appeal winded it way to today’s (Nov. 21) ruling. Murphy will presumably have to sift through the documents in the prosecution’s file to determine which ones are protected from disclosure by an express or implied promise of confidentiality.